6.  The applicant was born in 1960 and lives in Istanbul. He was the president of MÜSİAD[2] at the time of the events.
7.  On 4 October 1997 the applicant made an opening speech at a consultation meeting with the members of MÜSİAD. The applicant submitted that the meeting was held in private and that no journalists were allowed. During lunch, a journalist, Mr T.Y. approached the applicant and asked a couple of questions. The applicant gave some short answers.
8.  On 5 October 1997, a daily newspaper “Hürriyet” published an article entitled “Weird criticisms” about the event. The text was as follows:
“Erol Yarar who braces himself for the leadership of the Islamic section in view of the likelihood of the closure of the Welfare Party, stated that 'the head of he who wants to bring back Article 163 [of the Criminal Code] would be cut off', [and] continued to say that 'what rests with us is to start a democratic independence struggle'. In the consultation meeting of the professions committee, arranged by the Ankara Branch of MÜSIAD, Yarar criticised what he called the 'absolute atheist education' [and] asserted that 'Today, Turkey is debating topics which even the Greek and British occupation forces of Istanbul had not dared to raise although they might have desired to do so'. Yarar who alleged that those who bring up this topic on the agenda of Turkey cannot be believers and that 'attempts to punish even the circumcision festivities as a religious activity must be the work of those without circumcision'.
Yarar who alleged that uninterrupted compulsory education is designed to pave the way for establishing the legal foundation of an absolute atheist life [and] reached to the ongoing preparations for the re-introduction of a new criminal law similar to Article 163. Stating that the most important problem in Turkey was that of the people who while posing themselves as faithful Muslims by saying 'I am a Muslim too', prepared the legal foundation for an atheist life. He went on to state that 'what rests with us in that regard is to start a democratic independence struggle [against] those who would own up to such a draft law, if there is any. It is now our duty to do that'. Yarar then continued to state that 'Today, another problem of Turkey, which is as important as the unrecorded economy, is the unrecorded holders of State power. Holders of State power who do not derive their authority from the Nation, who are afraid of the Nation's will, who fear to express their own real faith to the Nation, who are in fact cowards but seek to oppress the nation through their unrecorded powers and who expect material and political premium from all this. [This] constitutes the single biggest problem of Turkey. But as long as the Nation's resolution to struggle continues, although they may raise their voices from time to time, their voices shall diminish when the Nation strikes back. Then we have a duty. We have to continue our struggle.'
Yarar, emphasising that the new arrangements under preparation would provide for heavy punishment and fines for those who support religious schools and religious meetings, stated that 'the head who wants to control everything through punishment; this is the head [kafa] which has to be changed in Turkey. It is a head which has to be invited to repent. It is a head which we the Nation have to seek to change. After having exhausted all our efforts, if it still does not want to come around to a reasonable point, then it has to be cut off. Turkey can get nowhere with such a head. Alleging that there was such a head in Turkey which prepares such law, he continued 'Perhaps there are one or two or three of them. But they are in positions to bring up such topics on the agenda. Perhaps they are behind their words, perhaps fearing people they cannot come out but they have to know that no one can impose today on the Nation what the English General did not dare to do. In today's circumstances, this Nation will give its response very strongly, by a democratic independence struggle. Yarar concluded as follows; 'Such an agenda should not discourage our will to invest, to open up to the world and to work in the spirit of the incursionist. The dog barks and the caravan moves. Dogs will always bark, the caravans have to move.”
9.  In the meantime, two other daily newspapers also published similar articles concerning the event with the titles “An absolute irreligious life” and “Solution is democratic liberation struggle”. The applicant claims that these newspapers took the story from Hürriyet.
10.  On 13 October 1997 Mr Ç.B., the Second Chief of the General Staff, denounced the applicant to the Istanbul public prosecutor's office. He requested that criminal charges be brought against him.
11.  On 20 October 1997 the General Directorate of Criminal Affairs of the Ministry of Justice requested the Istanbul public prosecutor's office to take legal action against the applicant.
12.  On 30 October 1997 the Istanbul public prosecutor's office decided that it lacked competence ratione materiae and transferred the case file to the public prosecutor at the Istanbul State Security Court. The latter decided that it lacked competence ratione loci and transferred the case file to the public prosecutor at the Ankara State Security Court.
13.  On 26 December 1997 the public prosecutor at the Istanbul State Security Court decided not to initiate criminal proceedings against the author of the article, Mr T.Y., and the editor-in-chief of Hürriyet since it considered that the article had been published without any accompanying comments with a view to imparting information on an event which had a news value.
14.  On 30 April 1998 the public prosecutor at the Istanbul State Security Court heard the applicant. The applicant submitted that he did not remember whether he had said the words published in Hürriyet since he spoke impromptu at the meeting and that his speech had been a criticism of the general economic situation of Turkey. He denied the allegation that he had incited people to hatred and hostility and submitted that the phrases read out to him could not be construed as such.
15.  On 20 May 1998 the public prosecutor at the Ankara State Security Court filed a bill of indictment against the applicant accusing him of inciting people to hatred and hostility on the basis of a distinction between class and religion. He requested that the applicant be convicted and sentenced under Article 312 § 2 of the Criminal Code.
16.  The following statements were highlighted in the indictment;
“Yarar criticised what he called the 'absolute atheist education' [and] asserted that 'Today, Turkey is debating topics which even the Greek and British occupation forces of Istanbul had not dared to raise although they might have desired to do so'.
(...) the uninterrupted compulsory education is designed to pave the way for establishing the legal foundation of an absolute atheist life (...)
(...) that those who bring up this topic on the agenda of Turkey cannot be believers and that 'attempts to punish even the circumcision festivities as a religious activity must be the work of those without circumcision'.
(...) It is a head which we the Nation have to seek to change. After having exhausted all our efforts, if it still does not want to come around to a reasonable point, then it has to be cut off.
(...) the dog barks and the caravan moves (...)”
17.  On an unspecified date the criminal proceedings against the applicant commenced before the Ankara State Security Court.
18.  The court requested various authorities to investigate whether the applicant's speech had been recorded. It was informed by the Ankara Security Directorate that, according to their investigation, the speech had not been recorded by anyone.
19.  On various dates, the court heard the testimony of witnesses. Mr A.F. affirmed that he did not hear the applicant saying the phrases highlighted by the prosecution. Mr R.A. and Mr M.A.H stated that they did not remember the contents of the applicant's speech. Mr Y.R.S. submitted that the applicant had talked about current economic issues. Mr N.B. affirmed that he only remembered that the applicant had used the phrase “the dog barks and the caravan moves”.
20.  On 11 May 1998 Mr T.Y. was heard by the public prosecutor at the State Security Court. He affirmed that he had recorded the speech of the applicant but since there had been no request for a disclaimer he erased the cassette. He claimed that he had been a journalist for twelve years, that he had not added any comments to the article and that the applicant had still not requested a disclaimer for the article.
21.  In the course of the proceedings, the applicant denied the charges against him. In his written submissions, dated 20 July 1998, the applicant stated, inter alia, that he had never said anything about cutting heads off and alleged that the journalist had either added certain remarks which he did not say or twisted the remarks he had made to him during the interview and made it look as if they were part of the speech he had made. He further submitted that his speech criticised economic, political and social policies of the Government.
22.  On 15 February 1999 the Ankara State Security Court heard as a witness, Mr Ö.T., a journalist at Milli Gazete. He submitted that he was unable to remember the contents of the applicant's speech since the events had taken place over a year ago. He claimed that when the article appeared in Milli Gazete the press officer of MÜSİAD had called him and told him of his displeasure and that the applicant had not made such a speech. He submitted that he had told the press officer to send a disclaimer. He maintained that he took the story from Mr T.Y. who had told him that he had spoken with the applicant over lunch.
23.  On 17 March 1999 Mr T.Y. reiterated his previous submissions before the Ankara State Security Court. He further claimed that he had not interviewed the applicant. He also submitted that when the police asked him about the cassette he had told them that there was no cassette since it had already been erased. The applicant submitted that he did not accept the statements of the journalist.
24.  On 21 April 1999 the Ankara State Security Court convicted the applicant of incitement to hatred and hostility on the basis of a distinction between class and religion and sentenced him to one year imprisonment and to a fine of 3,000 Turkish liras (TRL). The court decided to suspend the execution of the applicant's sentence pursuant to Law no.647.
25.  In its decision the court considered that the testimony of the journalist was sincere since he did not have any reason to incriminate the applicant and that the latter did not request a disclaimer of the article. It noted that similar articles had been published in other newspapers. Taking into account the speech as a whole, the court held, in particular, that the applicant had divided society into two groups, namely believers and non‑believers. It found that the applicant considered those who were in favour of eight years of compulsory and consecutive primary education and the reintroduction of Article 163 of the Criminal code as non-believers and those against as believers. The court considered that the applicant had set these two groups against each other and incited the religious feelings of the sincere Muslim masses. It concluded that the applicant had been trying to divide the society into two enemy camps according to their beliefs.
26.  However, the court found that since the impugned speech had been given before a limited number of people and on a day which did not have any specific importance, it did not endanger public security.
27.  On 6 October 1999 the Court of Cassation upheld the judgment of the Ankara State Security Court.
28.  The Government informed the Court that the criminal record of the applicant had been erased.